‘’The right to strike is a right to resist oppression.’’
Introduction:
A strike is a crucial step of the negotiating procedure.
Strikes provide workers with the bargaining power to drive fair and meaningful negotiations, offsetting the inherent inequalities of bargaining power in the employer-employee relationship. The exercise of the power to strike affirms a quintessential corpus of values akin to liberal democracies, notably those of dignity, liberty, and autonomy.[1] This particular right to strike plays an important role as it helps to preserve the winning rights of the people. If there is an abridgement of this right it would clearly mean that the freedom of people is at stake.
The first thing that comes in mind after hearing the word ‘Strike’ is protest. It is not only a declaration of demanding something but it also portrays the presence of provisions for the preservation of human rights. The reason behind these strikes is the fact that they attract the attention of the media and the prompt forums who are their main target audience and they do that by their actions and words.
What makes an individual to start a strike? It is a flaw in the social system. It might also be an unjust practice forced on people to be followed. Hence, those who are discontented with the very fact of strikes must understand that the loopholes in the norms of the social order lead one to do the same in the first place.
Industrial Dispute Act, 1947
Strike was declared as a statutory right under the Industrial Dispute Act,1947 by India. Before this, the Trade Dispute Act, 1929 had talked about the concept of strikes but it was not successful in finding a way out to establish peace among the workers and the industries.
A strike is “a cessation of work by a body of persons employed in an industry acting in combination; or a concerted refusal of any number of persons who are or have been so employed to continue to work or to accept employment; or a refusal under a common understanding of any number of such persons to continue to work or to accept employment”. [2]
This particular definition explains two things, one that strikes means the halting of work by the workers and second, the unwillingness to continue the work for a specific head member.
Procedure of Strikes in India
Strike should be only after the expiry of 14 days of prior notice given to the management.
According to Sec. 22(1)
No person employed in a public utility service shall go on strike in breach of contract-
- without giving to the employer notice of a strike, as hereinafter provided, within six weeks before striking; or
- within fourteen days of giving such notice; or
- before the expiry of the date of strike specified in any such notice as aforesaid; or
- during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.[3]
As per the regulations, during those 14 days, every member should come and work. If the authorities are able to resolve the said issue and problem within the span of time then no strike is to be taken place. Such a strike can only be carried forward by the employees before the expiry of the same, that is, six weeks. The main reason behind providing the fourteen days is for the employer to understand the problems that led to the strike and to come to a decision whether to agree to do the terms and conditions or not.
Legal Strikes and Lockouts
As per Section 24 of the ID Act, to start a strike the worker should abide by Sections 22, 23, 10(3), 10-A. If he fails to do so the said strike would be considered as illegal.
The above sections are explained below :
Section 22 and Section 23 talks about the ban of strikes and general prohibition of strikes and lockouts. If the matter as such is pending before the court and is delayed then a Labour court, tribunal or an arbitrator is brought up.
Section 10 lays down the reference of problems to the Board, Courts or Tribunals.
Section 10A refers to voluntary use of arbitration for the matter.
Section 10(3) says, ‘’ A lock-out declared in consequence of an illegal strike or a strike declared in consequence of an illegal lock-out shall not be deemed to be illegal.’’
There exists a penalty for illegal strikes and lockouts under Section 26 of the ID Act. The punishment of the said illegal strike is imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees, or with both.
If the strike is illegal the strikers cannot claim their wages whereas on the other hand if the strike so commenced is a legal one it is the duty of the employer to pay wages to its employees.
A strike is only termed as unjustified when the facts and reasons behind it are unreasonable.
Types of Strike
Strikes can commence due to variety of reasons in a variety of fields. The following are such types of strikes: –
1. General Strike
A general strike refers to a strike commenced by the majority of union members of a particular industry. Their target audience is generally the government and to create political pressure is the motive.
2. Economic Strike
This strike arises as a result of the economic problems the workers face. It is to impose their call on wages, bonus etc.
3. Sit-down Strike
Under this one, the employees or workers come to their place of employment but they refuse to carry on with the work. It is also known as ‘pen down’ strike.
Back in 1998, such strike was observed by the Municipal corporation in Punjab, the reason behind it was to raise their voice against the demand which were not accepted by the State government.
4. Hunger Strike
The concept of fasting comes under this strike. Such fasting is held near the workplace by the employees to make the employer address their grievances.
Such hunger strike was taken up by the employees of Bajaj Auto workers in 2017 to protest against the company’s anti-worker and anti-union activities.
5. Wild Cat Strikes
Such strikes are done without the consent of the unions.
A number of advocates in Bangalore, in 2004, had gone on a wild cat strike at the Civil City court as a result of the comment passed by an Assistant Commissioner.
6. Slow down Strike
As the name suggests, under this strike, the workers show up to their workplace and willingly and deliberately carry out their tasks in a slow manner so as to reduce the production process of a company. But in Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan[4], the Supreme Court had held that Slow down strike will be no longer considered a strike.
7. All-out Strike
It is a strike commenced by all the workers that work for a specific employer. This strike goes on until the employer agrees on a settlement by its workers. The phrase ‘as long as it takes’ is totally apt in case of this strike.
Right to Strike under Indian Constitution
Article 19(1)(c) of the Constitution of India has laid down that associations and unions can be formed as long as they agree to strike peacefully.
But Article 19(4) also reads that, ‘’ Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause and the strike undertaken under said sub-clause shall be reasonable and brought in notice to the employer.’’
Right to Strike does not come under the ‘Fundamental Rights’ in India. It is important to notice the fact that in the absence of the right to strike the said clause of right to form associations or unions will be considered as void. But through this provision, the judiciary focused on whether the strikes are held to be legal or not whilst not prohibiting the right to strike. The Apex Court had held that ‘’the membership of trade union if sufficient is able to bargain.’’
‘’Strike is a weapon available to workers to force their employer to fulfil worker’s demands. ‘’ – Supreme Court
This judgement was given in the case of Crompton Greaves Ltd. v Its Workmen[5]. The justification of the proposed strike depends upon the fact scenario. The Supreme Court of India has also held in few of the cases that up to some limit illegal strikes can also be justified.
In spite of the fact that Right to strike is not considered as a fundamental right, it is known as the legal right. All the International laws and convention, for example, the International Labour Organisation and Universal Declaration of Human Rights, 1948 has adopted the concept of Right to Strike but no attention is given to the same by India.
If the status of a fundamental right is given to it, then it will not only help improve the economical conditions of India but also take care of the welfare and health of the workers in the industry. Till date, the concern as to whether the right to strike is a fundamental right or not remains disputable.
Case Laws
- Indian Express Newspapers Bombay Pvt. Ltd. v TM Nagarajan[6]
In this case, it was claimed by the newspaper company that a few numbers of employees led by Mr.Nagarajan had staged a strike hereby not letting the employees to get in the building.
The High Court, in this case, had held that ‘’Peaceful strikes can be conducted by the workers to force the employer to fulfil their demands.’’
- B.R. Singh v Union of India[7]
The Supreme Court, in this case, had held that ‘’ it is very essential for the trade union to have sufficient membership which can be secured through agitation methods such as strike, go slow etc and that strike is an inherent right which protects the liberty of workers.’’ The concept of strikes was accepted as the legal right.
- All India Bank Employees Association v. National Industrial Tribunal[8]
In this case, the Supreme Court had held that ‘’ the right to strike or right to declare lockout may be controlled or restricted by appropriate industrial legislation and the validity of such legislation would have to be tested not regarding the criteria laid down in clause (4) of Article 19 but by totally different considerations.’’
The Supreme Court also considers that strikes to employers are a means to preserve their liberty.
- The Punjab National Bank Ltd vs Its Workmen[9]
It was observed in this case that, the employer or head of the industry has the rights to stop the strikers to enter its premises by taking up various measures for the same. He might also suspend them from their work due to this strike.
Conclusion
“Workers of the world unite; you have nothing to lose but your chains.”
-Karl Marx
The Right to strike must be defended.
It is to be noted that strikes do result in possible hazards such as no office hours, no grades etc. But these hazards are way less when compared to the worker’s welfare and just rewards.
The employees deserve to lead a proper life with their rights being protected from prejudiced societal reforms. They should have the right and authority to raise their voices against unlawful decisions made by their superiors.
Right to strike must be considered to be a fundamental right in the Constitution of India. The right to form unions and associations is not enough until and unless it is backed by the right to strike.
Considering the dismal conditions of industries, employer domination, minimum wage issues and social aspects of the strike, it casts a legal and constitutional obligation on the State to made strike as a fundamental right under Article 19(1)(c).[10]
Giving such right will improve both the economic structure of the economy and the economic well being of the workers.
Hence, as observed above, Right to strike is the ultimate weapon for the workers and such rights should be protected by the Indian Constitution.
References:
[1] The Harvard Crimson, https://www.thecrimson.com/
[2] Industrial Disputes Act 1947
[3] Strikes, http://www.whatishumanresource.com/
[4]Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan AIR 1959 SC 923
[5] Crompton Greaves Ltd. v Its Workmen AIR 1978 SC 1489
[6] Indian Express Newspapers Bombay Pvt. Ltd. v TM Nagarajan 1987 (15) DRJ 212
[7] B.R. Singh v Union of India AIR1989 SCC 710
[8] All India Bank Employees Association v. National Industrial Tribunal 1962 SCR (3) 269
[9] The Punjab National Bank Ltd vs Its Workmen AIR 1960 SCR (1) 806
[10] Right to Strike : Proposed Amendment in the Indian Constitution, https://blog.ipleaders.in/
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